Plaintiffs' Opposition to Motion to Dismiss — Children's Health Defense v. Rutgers

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No. 3:21-cv-15333-ZNQ-TJB · Doc. 42 · 2022-01-11 · Docket on CourtListener

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Julio C. Gomez, Esq. 
GOMEZ LLC ATTORNEY AT LAW 
1451 Cooper Road 
Scotch Plains, NJ 07076 
Tel 908.789.1080 
Fax 908.789.1081 
Attorney for Plaintiffs 
 
 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF NEW JERSEY 
CHILDREN’S HEALTH DEFENSE, INC., 
PETER CORDI, RAELYNNE MILLER, 
KAYLA MATEO, ADRIANA PINTO, 
JAKE BOTHE, AND DOES 1-13, 
 
 
Plaintiffs, 
Case No. 3:21-cv-15333 
(ZNQ-TJB) 
 
-against- 
 
 
 
RUTGERS, THE STATE UNIVERSITY 
OF NEW JERSEY, BOARD OF 
GOVERNORS, RUTGERS SCHOOL OF 
BIOMEDICAL AND HEALTH 
SCIENCES, CHANCELLOR BRIAN L. 
STROM, PRESIDENT JONATHAN 
HOLLOWAY, in their official capacities. 
 
 
Defendants 
 
 
 
 
PLAINTIFFS’ MEMORANDUM OF LAW 
IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS 
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TABLE OF CONTENTS 
 
 
TABLE OF AUTHORITIES…..…………………………………………………....ii 
 
INTRODUCTION……………………………………..…….……………………..1 
 
STANDARDS FOR A MOTION TO DISMISS …………………………………...2 
 
ARGUMENT ………………………………………………………………………3 
 
I. 
ALL PLAINTIFFS HAVE STANDING ……………………………………3 
 
II. 
PLAINTIFFS’ CLAIMS ARE WELL PLED AND NOT DISMISSIBLE …..5 
A. Plaintiffs’ Due Process Claims Are Grounded In Fundamental Rights to 
Informed Consent and To Refuse Medical Treatment ……………………5 
B. Plaintiffs Have Plead a Plausible Denial of Due Process under Strict 
Scrutiny or alternatively, Rational Basis …………………………………11 
C. Plaintiffs Have Pled Plausible Violations of Equal Protection ………...…19 
D. Plaintiffs’ 42 U.S.C. § 1983 and NJCRA Claims Survive ………………...20 
E. Plaintiffs Pled Rutgers Plausibly Violated State and Federal Law………...20 
1. Violation of Federal Law (Preemption) ………………………..20 
2. Violation of State Authority (Ultra Vires) ……………………..24 
F. 
Plaintiffs Have Successfully Pled Breach of Contract ………………...32 
G. 
Plaintiffs Have Properly Pled Estoppel ………………………………33 
CONCLUSION …………………………………………………………………...35 
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TABLE OF AUTHORITIES 
 
 
Abdullahi v. Pfizer, Inc. 
562 F.3d 163 (2d Cir. 2009) ……………………………………………………21, 22 
 
Ashcroft v. Iqbal,  
556 U.S. 662 (2009) …………………………………………………………………2 
 
Bell Atlantic Corp. v. Twombly,  
550 U.S. 544 (2007) …………………………………………………………………2 
 
Beukas v. Board of Trustees of Fairleigh Dickinson Univ., 
255 N.J. Super 420 (1992) …………………………………………………………32 
 
Breithaupt v. Abram,  
352 U.S. 432 (1957) …………………………………………………………………6 
 
Bridges v. Houston Methodist Hosp., 
No. H-21-1774, 2021 WL 2399994, (S.D. Tex June 12, 2021) ……………………...24 
 
Burson v. Freeman, 
504 U.S. 191 (1992) …………………………………………………………………9 
 
Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 
80 N.J. 334 (1979) …………………………………………………………………33 
 
Calvary Chapel Dayton Valley v. Sisolak, 
140 S. Ct. 2603 (2020) ……………………………………………………………...10 
 
Crosby v. National Foreign Trade Council, 
530 U.S. 363 (2000) ………………………………………………………………..23 
 
Cruzan v. Director, Missouri Dept. of Health, 
497 U.S. 261 (1990) ……………………………………………………………5, 6, 7 
 
DeMuria v. Hawkes, 
328 F.3d 704 (2d Cir. 2003) ………………………………………………………..20 
 
Dougherty v. Drew University, 
534 F. Supp. 3d. 363 (D.N.J. 2021) ………………………………………………...33 
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Freightliner, Corp. v. Myrick,  
514 U.S. 280 (1995) ………………………………………………………………..23 
 
Friends of the Earth Inc. v. Laidlaw Environmental Services, Inc., 
528 U.S. 167 (2000) …………………………………………………………………3 
 
Goldfarb v. Solimine, 
245 N.J. 326 (2021) ………………………………………………………………...33 
 
Gourdine v. Felician College, 
2006 WL 23462578 (N.J. App. Div. 2006) …………………………………………32 
 
Halgren v. City o Naperville,  
No. 21-cv-05039, 2021 WL 5998583 (N.D. Ill. Dec. 19, 2021) ……………………...9 
 
Hill v. Borough of Kutztown,  
455 F.3d 225 (3d Cir. 2006) ………………………………………………………..20 
 
Housing Authority of City of Atlantic City v. State, 
188 N.J. Super 145 (1983) …………………………………………………………33 
 
In re Nickelodeon Consumer Privacy Litig., 
827 F.3d 262 (3d. Cir. 2016) ………………………………………………………...4 
 
Ingraham v. Wright, 
430 U.S. 651 (1977) …………………………………………………………………9 
 
Jacobson v. Massachusetts, 
197 U.S. 11 (1905) ………………………………………………………...6, 8, 10, 31 
 
Koontz v. St. Johns River Water Mngmt. Dist., 
570 U.S. 595 (2013) ………………………………………………………………..18 
 
Leapheart v. Prison Health Services, Inc., 
No. 3:10-cv-1019, 2010 WL 5391315 (M.D. Pa. Nov. 22, 2010) …………………….9 
 
Lujan v. Defs. of Wildlife, 
504 U.S. 555 (1992)) ………………………………………………………………...1 
 
 
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Messina v. College of New Jersey 
Civ. No. 21-17576, 2021 WL 4786114 (D.N.J. Oct. 14, 2021) ………………………4 
 
N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 
772 F.2d 25 (3d Cir. 1985) ………………………………………………………...4,5 
 
Neitzke v. Williams, 
490 U.S. 319 (1989) …………………………………………………………………3 
 
Norris v. Stanley, 
2021 WL 3891615 (W.D. Mich 2021) ……………………………………………...24 
 
Parham v. J.R., 
442 U.S. 584 (1979) …………………………………………………………………6 
 
Phillips v. County of Allegheny, 
515 F.3d 224 (3d. Cir. 2008) …………………………………………………2, 3, 20 
 
PLIVA, Inc. v. Mensing, 
564 U.S. 604 (2011) ………………………………………………………………..23 
 
Regan v. Taxation with Representation of Wash., 
461 U.S. 540 (1983) ………………………………………………………………..18 
 
Rennie v. Klein,  
653 F.2d 836 (3d Cir. 1981) …………………………………………………………9 
 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) ………………………………………………………………..10 
 
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 
547 U.S. 47 (2006) …………………………………………………………………18 
 
Rutan v. Republican Party of Ill., 
497 U.S. 62 (1990) …………………………………………………………………18 
 
Scheuer v. Rhodes, 
416 U.S. 232 (1974) …………………………………………………………………3 
 
Shloendorff v. Society of New York Hospital, 
211 N.Y. 125, 129-130 (1914) ………………………………………………………7 
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Snyder v. Massachusetts, 
291 U.S. 97 (1934) ………………………………………………………………….7 
 
Spokeo, Inc. v. Robins,  
136 S. Ct. 1540 (2016) ………………………………………………………………4 
 
Union Pacific R. Co. v. Botsford,  
141 U.S. 250, 251 (1891) ……………………………………………………………7 
 
Valdez v. Grisham, 
No. 21-cv-783, 2021 WL 4145746, (D.N.M. Sept. 13, 2021) ……………………….24 
 
Vitek v. Jones, 
445 U.S. 480 (1980) …………………………………………………………………6 
 
Washington v. Glucksberg, 
521 U.S. 702 (1997) ………………………………………………………………7, 8 
 
Washington v. Harper, 
494 U.S. 210 (1990) …………………………………………………………………6 
 
White v. Napoleon, 
897 F.2d 103 (3d Cir. 1990) …………………………………………………………9 
 
Village of Willowbrook v. Olech, 
528 U.S. 562 (2000) ………………………………………………………………..20 
 
U.S. Const., Art. VI, cl. 2 ………………………………………………………….22 
 
21 U.S.C. § 360bbb-0a ……………………………………………………………..21 
 
21 U.S.C. § 360bbb-3(e)(1)(A) ……………………………………………...13, 22, 23 
 
38 U.S.C. § 7331 …………………………………………………………………...21 
 
42 U.S.C. § 9501 …………………………………………………………………...21 
 
42 U.S.C. § 300ff-61 ……………………………………………………………….21 
 
21 C.F.R. § 50.20 …………………………………………………………………..21 
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45 C.F.R. § 46.116 …………………………………………………………………21 
 
N.J.S.A. 18A:61D-1 ………………………………………………………………..24 
 
N.J.S.A. 18A:61D-8 ……………………………………………………………28, 30 
 
N.J.S.A. 18A:62-15.1 ………………………………………………………………30 
 
N.J.S.A. 26:1A-7 …………………………………………………………………...25 
 
N.J.S.A. 26:4-2 ……………………………………………………………………..26 
 
N.J.S.A. 26:13-14 ………………………………………………………………….26 
 
N.J.S.A. 26:13-36 …………………………………………………………………..26 
 
N.J.A.C. 8:57-6.21 …………………………………………………………………26 
 
N.J.A.C. 8:57-6.4(c) ……………………………………………………24, 27, 29, 32 
 
N.J.A.C. § 8:57-6.14 (d) ……………………………………………………………30 
 
N.J.A.C. § 8:57-6.15 ……………………………………………………………….30 
 
21 N.J. Reg. 3605-3607 (1989) ……………………………………………………..28 
 
22 N.J. Reg. 1137-1140 (1990) …………………………………………………28, 29 
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INTRODUCTION 
Plaintiffs are students at Rutgers University and members of Children’s Health 
Defense (“CHD”) a non-profit whose focus for many years has been the harm and 
injury caused by vaccines.  Since the start of the pandemic CHD has consistently 
produced accurate, well-sourced information concerning COVID-19 generally and 
COVID-19 vaccines in particular.  All currently available COVID-19 vaccines remain 
under clinical study in one form or another.  At this time, it is unknown if they 
prevent infection, transmission, or if they pose any long-term safety risks.  So far there 
are over a million reports of adverse events and over 20,000 deaths from COVID-19 
vaccines nationwide.  If there are no data showing these vaccines prevent 
transmission, then these vaccines are not capable of minimizing outbreaks and cannot 
be reasonably mandated to reduce the spread of COVID-19, as Plaintiffs allege.  
Under such circumstances there is no public interest that can be furthered with these 
“experimental” vaccines sufficient to outweigh the constitutionally guaranteed rights 
to informed consent and to refuse medical treatment of student Plaintiffs.  State 
colleges and universities cannot mandate an experimental vaccine still under 
investigation for efficacy and safety that does not prevent transmission.  Also if these 
vaccines do not prevent transmission then there can be no basis for treating 
vaccinated and unvaccinated people differently. 
If the rights to Due Process and Equal Protection mean anything, they mean 
that every individual must be allowed to choose freely, without coercion, from a state 
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college or university, whether to consent to COVID-19 vaccines and subject 
themselves to their unknown risks; and those who refuse, should not be treated 
differently.  
STANDARDS FOR A MOTION TO DISMISS 
Under Federal Rule of Civil Procedure 8(a)(2), Plaintiffs’ First Amended 
Complaint (“FAC”) “must contain a ‘short plain statement of the claim showing that 
the pleader is entitled to relief.’”  Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) 
(quoting Rule 8).  The Rule “does not require ‘detailed factual allegations.’” Id. 
(quoting Bell Atlantic Corp. v,. Twombly, 550 U.S. 544, 555 (2007)), only enough to “give 
the defendant fair notice of what the… claim is and the grounds upon which it rests.”  
Twombly, 550 U.S. at 555; see also Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d. 
Cir. 2008).  Additionally, courts must still “accept all factual allegations as true, 
construe the complaint in the light most favorable to the plaintiff, and determine 
whether, under any reasonable reading of the complaint, the plaintiff may be entitled 
to relief.”  Phillips, 515 F.3d at 233. 
“To survive a motion to dismiss, a complaint must contain sufficient factual 
matter, accepted as true, to ‘state a claim to relief plausible on its face.’”  Ascroft, 556 
U.S. at 678 (“[t]he plausibility standard is not akin to a “probability requirement” but 
it asks for more than a sheer possibility that defendant has acted unlawfully.”) 
(quoting Twombly, at 570 and 556).  “Determining whether a complaint states a 
plausible claim for relief will… be a content-specific task that requires the reviewing 
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court to draw on its judicial experience and common sense.”  Ascroft, 556 U.S. at 679.  
“When there are well-pleaded factual allegations, a court should assume their veracity 
and then determine whether they plausibly give rise to an entitlement to relief.”  
Ascroft, 556 U.S. at 679.  “In passing on a motion to dismiss . . . for failure to state a 
cause of action, the allegations of the complaint should be construed favorably to the 
pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).  Notably, “Rule 12(b)(6) does not 
countenance… dismissals based on a judge’s disbelief of a complaint’s factual 
allegations.”  Neitzke v. Williams, 490 U.S. 319, 327 (1989).  In fact, a well-pleaded 
complaint survives even if it appears “that a recovery is very remote and unlikely”.  
Scheuer v. Rhodes, 416 U.S. 232 (1974).  “Standards of pleading are not the same as 
standards of proof.”  Phillips, 515 F.3d at 246. 
Finally, “if a complaint is subject to a Rule 12(b)(6) dismissal, a district court 
must permit a curative amendment unless such an amendment would be inequitable 
or futile.”  Phillips, 515 F.3d at 245 (“a district court must provide the plaintiff with 
this opportunity even if the plaintiff does not seek leave to amend”) (remanding with 
instructions to permit amendment). 
ARGUMENT 
I. 
ALL PLAINTIFFS HAVE STANDING. 
Defendants concede Adriana Pinto has standing to bring all claims.  Brf. at 7.  
Since Ms. Pinto is a member of Children’s Health Defense (“CHD”), CHD’s standing 
mirrors hers.  See Friends of the Earth Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 
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167, 181 (2000) (“An association has standing to bring suit on behalf of its members 
when its members would otherwise have standing to sue in their own right, the 
interests at stake are germane to the organization’s purpose, and neither the claim 
asserted nor the relief requested requires the participation of individual members in 
the lawsuit.”).  The remaining Plaintiffs, who ultimately received religious exemptions 
from Rutgers’ vaccine mandate, also have standing because they allege that Rutgers’ 
Policy continues to impose unconstitutional conditions upon them (e.g. testing, 
masking, exclusion from university housing), and Rutgers has reserved the right to 
impose additional conditions upon exempt students.  FAC ¶ 12.  As in Messina v. 
College of New Jersey, the exempt Plaintiffs here have alleged “an invasion of a legally 
protected interest that is concrete, particularized, and imminent. Civ. No. 21-17576, 
2021 WL 4786114 (D.N.J. Oct. 14, 2021) at n. 2 (citing Spokeo, Inc. v. Robins, 136  S. 
Ct. 1540, 1547 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)) and 
In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 272 (3d. Cir. 2016). 
Nor are Plaintiffs’ claims moot even though everyone is presently required to 
mask or faculty and staff are now subject to a federal mandate as Defendants’ argue.  
N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985) (“a 
matter is not necessarily moot simply because the order attacked has expired; if the 
underlying dispute between the parties is ‘one capable of repetition, yet evading 
review,’ it remains a justiciable controversy”).  Rutgers’ Policy “is subject to change 
based on factors such as the progress of the COVID-19 pandemic and guidance from 
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governmental authorities.” Counsel Decl. Ex. A.  Since Rutgers imposed a mandate 
on faculty and staff solely as a result of President Joseph R. Biden, Jr.’s Executive 
Order 14042, that mandate may dissolve if Biden’s Order is successfully challenged.  
Moreover, the exempt students are entitled to a declaratory judgment since their rights 
were violated during the period that Rutgers did not mandate faculty and staff.  
Additionally, nothing in Rutgers’ Policy prohibits Rutgers from revoking a religious 
exemption; religious exemptions were granted vis-à-vis conflicts with COVID-19 
vaccines currently available; COVID-19 vaccines are under continuous development 
and Rutgers is likely to require that students who have received religious exemptions 
explain how their religious beliefs conflict with any new vaccines that may not pose 
the same conflicts. Thus the exempt Plaintiffs’ claims are “capable of repetition and 
evading review.” N.J. Turnpike Auth., 772 F.2d at 31. 
II. 
PLAINTIFFS’ CLAIMS ARE WELL-PLED AND NOT DISMISSIBLE. 
The Court should deny Defendants’ motion to dismiss Plaintiffs’ constitutional 
claims since violations of Due Process, Equal Protection and common law were all 
properly pled. 
A. Plaintiffs’ Due Process Claims Are Grounded In Fundamental Rights 
to Informed Consent and to Refuse Medical Treatment. 
Plaintiffs have a constitutionally guaranteed right to informed consent and to 
refuse unwanted medical treatment under the Due Process Clause of the Fourteenth 
Amendment.  See Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 269 (1990).  
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Citing Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905) (balancing individual liberty 
interest against State’s interest in preventing disease), Breithaupt v. Abram, 352 U.S. 432, 
439 (1957) (“As against the right of an individual that his person be held 
inviolable…”), Washington v. Harper, 494 U.S. 210, 229 (1990) (“The forcible injection 
of medication into a nonconsenting person’s body represents a substantial 
interference with that person’s liberty”), Vitek v. Jones, 445 U.S. 480, 495-496 (1980) 
(transfer to a mental hospital coupled with mandatory behavior modification 
treatment implicated liberty interests), and Parham v. J.R., 442 U.S. 584, 600 (1979) 
(“[A] child, in common with adults, has a substantial liberty interest in not being 
confined unnecessarily for medical treatment”), the Supreme Court in Cruzan 
recognized a “liberty interest in refusing medical treatment.” Cruzan, at 278-79.  The 
right to refuse unwanted medical treatment “is a logical corollary of the doctrine of 
informed consent.”  Id. at 270.  A person’s liberty interest under the Due Process 
Clause in avoiding unwanted medical treatment “must be determined by balancing his 
liberty interests against the relevant state interests.”  497 U.S. at 278-79 (citing Jacobson 
v. Massachusetts, 197 U.S. 11, 24-30 (1905) (“There is, of course, a sphere within which 
the individual may assert the supremacy of his own will and rightfully dispute the 
authority of any human government, especially of any free government existing under 
a written constitution, to interfere with the exercise of that will”); Cruzan v. Director, 
Missouri Dept. of Health, 497 U.S. 261, 269 (1990) (“The principle that a competent 
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person has a constitutionally protected liberty interest in refusing unwanted medical 
treatment may be inferred from our prior decisions.”).   
In order for this right to be deemed “fundamental” and therefore deserving of 
strict judicial scrutiny in tiers of constitutional adjudication, it must be deeply rooted 
in the nation’s history.  Rutgers argues Plaintiffs’ claims are not so deeply rooted, Brf. 
at 12, but Supreme Court precedent dispels that argument.  See Washington v. 
Glucksberg, 521 U.S. 702, 720-721 (1997) (“[W]e have regularly observed that the Due 
Process Clause specially protects those fundamental rights and liberties, which are, 
objectively, ‘deeply rooted in this Nation’s history and tradition’.”) (citing Snyder v. 
Massachusetts, 291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of 
our people as to be ranked as fundamental”).  This right is so rooted.   
“At common law, even the touching of one person by another without consent 
and without legal justification was a battery.”  Cruzan, 497 U.S. at 269.  See Union Pacific 
R. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“[n]o right is held more sacred, or is more 
carefully guarded, by the common law, than the right of every individual to the 
possession and control of his own person, free from all restraint or interference of 
others, unless by clear and unquestionable authority of law.”); Shloendorff v. Society of 
New York Hospital, 211 N.Y. 125, 129-130 (1914)( cited by Cruzan) (“Every human 
being of adult years and sound mind has a right to determine what shall be done with 
his own body”). 
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Even the Court in Jacobson v. Massachusetts, recognized, “[t]here is, of course, a 
sphere within which the individual may assert the supremacy of his own will and 
rightfully dispute the authority of any human government, especially of any free 
government existing under a written constitution, to interfere with the exercise of that 
will”.  197 U.S. 11, 24-30 (1905).   
The Supreme Court’s decision in Washington v. Glucksberg, 571 U.S. 702 (1997), 
should settle the question that the right to informed consent and to refuse unwanted 
medical treatment is a “fundamental right” entitled to “strict scrutiny”.  Deciding first 
that the Due Process Clause “protects those fundamental rights and liberties which 
are, objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in 
the concept of ordered liberty,” such that “neither nor justice would exist if they were 
sacrificed” and that substantive due process requires a “careful description” of the 
asserted fundamental liberty interest, Glucksberg concluded that “the right assumed in 
Cruzan,” was not “simply deduced from abstract concepts of personal autonomy but 
rather “the common law rule that forced medication was a battery, and the long 
tradition protecting the decision to refuse unwanted medical treatment,” and thus the 
right recognized in Cruzan’s “assumption was entirely consistent with this Nation’s 
history and constitutional traditions.”  Id. at 724-25.  The conclusion from this 
analysis is that Glucksberg can stand for the proposition that this is a fundamental right.  
521 U.S. 725 (distinguished from the right to die which has not enjoyed similar 
protection).   
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The Third Circuit has embraced this view that these are “fundamental” rights: 
The Due Process clause of the Fourteenth Amendment substantively 
protects certain fundamental rights.  Among these are the right to be 
free from unjustified intrusions into the body, Ingraham v. Wright, 430 
U.S. 651, 673 (1977), the related right to refuse unwanted medical 
treatment, Rennie v. Klein, 653 F.2d 836, 844 (3d Cir. 1981), and as we 
decide today, the right to sufficient information to intelligently exercise 
those rights. 
White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 1990); see also Leapheart v. Prison Health 
Services, Inc., No. 3:10-cv-1019, 2010 WL 5391315 (M.D. Pa. Nov. 22, 2010) at *6 (“[I]t 
is well-settled the Due Process Clause of the Fourteenth Amendment substantively 
protects certain fundamental rights”).  This Court is bound by Third Circuit precedent 
to view Plaintiffs’ rights to informed consent and to refuse unwanted medical 
treatment as fundamental.  Accordingly, Rutgers’ Policy must be “narrowly tailored to 
a compelling state interest.”  See Burson v. Freeman, 504 U.S. 191, 198 (1992) (when 
fundamental rights are at stake, “the state must show that the regulation is necessary 
to serve a compelling state interest and that it is narrowly drawn to achieve that end”). 
Jacobson does not exist in a vacuum and must be read in conjunction with the 
Supreme Court’s jurisprudence since Jacobson was decided more than 100 years ago 
before courts articulated the right to informed consent and the right to refuse 
unwanted medical treatment was fundamental and before tiers of judicial scrutiny 
were developed.  Therefore, Jacobson is antiquated, somewhat instructive and most 
certainly is not dispositive.  See Halgren v. City o Naperville, No. 21-cv-05039, 2021 WL 
5998583 (N.D. Ill. Dec. 19, 2021) (“[M]odern courts cannot adopt a blunt application 
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of Jacobson’s ‘substantial relation’ deference test.  Instead courts must interpret Jacobson 
through the lens of constitutional analysis.”); see also Roman Catholic Diocese of Brooklyn v. 
Cuomo, 141 S. Ct. 63, 74 (2020) (Kavanaugh, J., concurring) (addressing Jacobson 
cautioned: “judicial deference in an emergency or crisis does not mean wholesale 
abdication, especially when important questions of religious discrimination, racial 
discrimination, free speech or the like are raised.”); see also Calvary Chapel Dayton Valley 
v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting) (“[I]t is a mistake to take 
the language in Jacobson as the last word on what the constitution allows public 
officials to do during the COVID-19 pandemic.”). 
Moreover, Jacobson dealt with a 100-year old smallpox vaccine which the 
passage of time had demonstrated was effective in preventing the spread of smallpox.  
197 U.S. at 23-24 and footnotes.  This case is not Jacobson.  According to Plaintiff’s 
factual allegations, based on the FDA, there are insufficient data that COVID-19 
vaccines prevent infection or transmission and there are no data of long term health 
effects.  The City of Cambridge’s interest in protecting against the spread of smallpox 
could be achieved with the smallpox vaccine that had been available and observed as 
effective for decades.  Not so here, where Plaintiffs allege so many unknowns about 
the efficacy and safety of COVID-19 vaccines.  FAC ¶¶ 139-188. 
Additionally, Jacobson holds that even a vaccine that has been employed for over 
100 years and demonstrated to prevent transmission must still be reasonably 
mandated, necessary for public health, and proportional to the need. 197 U.S. at 27-33 
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(“if a statute purporting to have been enacted to protect the public health, the public 
morals or the public safety, has no real or substantial relation to those objects, or is, 
beyond all question, a plain, palpable invasion of rights secured by the fundamental 
law, it is the duty of the courts to so adjudge, and thereby give effect to the 
Constitution.”).  Jacobson requires vaccines to be safe, efficacious, necessary, 
proportional to the need, and accord with the civil rights guaranteed.  These 
requirements are consistent with the current view that Courts deem the right to 
informed consent and refuse unwanted medical treatment as “fundamental.”  Cruzan 
and its progeny essentially give greater weight to the requirements of Jacobson in the 
current judicial landscape.  Defendants misread the substance of Plaintiffs’ Due 
Process Claims; they are not arguing against any vaccine requirements, Brf. at 11, but 
rather against vaccines with so many unknowns. 
Essentially, for vaccines to qualify for a mandate under Jacobson and Cruzan 
today, that would outweigh the Due Process liberty interest in the Due Process Clause 
as it is currently understood, vaccines today must be confirmed to prevent infection 
and transmission so they can be deemed necessary (or reasonable) to curtail the 
spread of COVID-19; their risks and safety profile must be known to permit a 
mandate to be narrowly tailored (or reasonably related) to those who would need the 
vaccines the most and are least likely to be injured by them. 
B. Plaintiffs Have Plead a Plausible Denial of Due Process under Strict 
Scrutiny or alternatively, Rational Basis.  
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Consistent with Jacobson, Cruzan, Harper, Glucksberg and Napoleon, strict scrutiny 
should be applied to their claims, not rational basis as Rutgers claims, and Rutgers’ 
Policy must be narrowly tailored to a compelling state interest.  In the alternative, 
even if this Court were to apply rational basis, at this stage, on the current record, 
assuming Plaintiffs’ facts are true, it is plausible that Rutgers’ Policy does not meet the 
requirements of rational basis because there are too many unknowns about COVID-
19 vaccines. 
The expressed purpose of Rutgers’ Policy is to “minimize outbreaks of 
COVID-19” and to “prevent and reduce the risk of transmission of COVID-19.”  
FAC ¶ 280.  These are legitimate, even compelling state interests.  However, Plaintiffs 
have also alleged that Defendants’ financial relationships with COVID-19 vaccine 
manufacturers create conflicts of interest that may explain the decision to reverse 
course to issue the mandate after all.  FAC ¶¶ 124-138.  Assuming these facts are true, 
Defendants do not have a legitimate interest.  This Court is also required to accept the 
following facts in Plaintiffs’ First Amended Complaint as true: 
First, and foremost, according to the FDA, there are insufficient data to know 
the efficacy of currently available COVID-19 vaccines or boosters in preventing 
asymptomatic infection or transmission of SARS-CoV-2.  FAC at 1 and ¶¶ 139-188. 
Second, according to the FDA, there are insufficient data to know that 
COVID-19 vaccines as safe.  FAC ¶¶ 124-127.  There is absolutely no data or 
information concerning whether COVID-19 vaccines pose any long-term risks.  FAC 
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¶¶ 147, 148, 175, 291.  With this information lacking, whether the benefits of 
COVID-19 vaccines outweigh their risks is unknown.  FAC ¶ 6.   
FDA permits use of all currently available COVID-19 vaccines under Section 
564 of the Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 360bbb-3, which is 
an “emergency use authorization” (“EUA”), whose purpose is to make products 
available that have not gone through FDA’s full safety and efficacy review process.  
FAC ¶¶ 55-64.  All currently available COVID-19 vaccines, testing and even masking 
are made available under EUA.  FAC ¶ 65.  FDA is required to ensure that individuals 
are informed of “the option to accept or refuse administration” of EUA products.  21 
U.S.C. § 360bbb-3(e)(1)(A)(ii)(III).  Even clinical studies for Pfizer’s “Comirnaty” 
vaccine are ongoing, FAC ¶ 77, and in any event, Pfizer’s licensed vaccine is not 
currently available.  FAC ¶ 125. 
As a result of their status as EUA products, COVID-19 vaccines are deemed 
by the FDA and the NIH as “experimental” vaccines and these agencies use those 
terms interchangeably to describe them.  FAC ¶¶ 124-126.  Furthermore, these 
vaccines were only tested on human subjects for six (6) months before release, and 
clinical studies for these vaccines are ongoing and will not be completed for several 
years.  FAC ¶ 127, 147.  Rutgers is engaged in clinical studies on all three vaccines, has 
multi-million dollar financial ties to all three COVID-19 vaccine manufacturers, and 
those relationships pose conflicts of interest in deciding to mandate them.  FAC ¶¶ 
128-138.  EUA testing and masking are in the same investigational position.  There is 
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no test to determine if individuals are infectious.  FAC ¶ 91.  FDA has never 
approved any face mask as being effective against COVID-19.  FAC ¶ 83.   
Significantly, COVID-19 vaccines are causing injury and death if Plaintiffs’ 
allegations are accepted as true.  In less than a year COVID-19 vaccines have killed 
and injured more people than all other vaccines tracked in the government’s national 
Vaccine Adverse Event Reporting System since its inception.  FAC ¶ 7.  VAERS is 
co-administered by the FDA and CDC and currently tallies over one million reports 
of adverse events, including more than 20,000 deaths, and 166,000 serious injuries 
from COVID-19 vaccines.1  It is alleged Defendants did not consider this 
information.  FAC ¶¶ 155, 224. 
Rates of COVID-19 were lower when vaccines were not available.  FAC ¶ 53.  
Studies suggest that COVID-19 vaccines do not work, and whatever benefit they 
impart wanes or boosters would not be needed.  FAC ¶ 96-97.  These are not “labels 
and conclusions,” a “formulaic recitation of the elements of a cause of action,” or 
even “naked assertions devoid of further factual enhancement.”  Ashcroft, 556 U.S. at 
 
1 “VAERS data released Friday [January 7, 2022] by the Centers for Disease Control 
and Prevention included a total of 1,017,001 reports of adverse events from all age 
groups following COVID vaccines, including 21,382 deaths and 166,606 serious 
injuries between Dec. 14, 2020, and Dec. 31, 2021.”  Megan Redshaw, 7-Year Old Dies 
11 days after Pfizer Shot, The Defender (January 7, 2022), available at 
https://childrenshealthdefense.org/defender/vaers-cdc-child-dies-pfizer-covid-
vaccine/.  (last visited January 11, 2022).   See also 
https://www.medalerts.org/vaersdb/findfield.php?TABLE=ON&GROUP1=CAT&EVEN
TS=ON&VAX=COVID19  (last visited January 11, 2022). 
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678.  These allegations are based on statements from the FDA itself.  FAC at 1, ¶¶ 83, 
140, 147, 160, 165, 170. 
In essence, Plaintiffs pled that there are insufficient data to know that COVID-
19 vaccines prevent infection or transmission, no data of long term health risks, 
increasing data about death and injury caused by these vaccines.  FAC ¶¶ 139-157.  
Construing these facts in the light most favorable to Plaintiffs there is no way for an 
institution mandating these vaccines to reasonably weigh the risk and benefits, and no 
way to assess how to mandate these vaccines in a manner that is narrowly tailored to 
achieve a compelling state interest in reducing the spread of contagious disease.  The 
lack of knowledge and information as to whether these vaccines prevent transmission 
even makes it impossible for any college or university to say reasonably that 
mandating them is rationally related to a reduction in transmission.  Because of the 
alleged unknowns surrounding COVID-19 vaccines mandating them is not 
sufficiently related to Rutgers’ express purpose of minimizing outbreaks or preventing 
transmission on campus, against the weight of a person’s right to refuse in light of so 
many unknowns about the risks and safety of these COVID-19 vaccines, especially 
while they remain “experimental.”  See discussion at Section E.1 infra. Contrary to 
Defendants’ arguments, Brf at 14, Plaintiffs are not asking the Court to make its own 
judgments about effectiveness; Plaintiffs allege that FDA has determined presently 
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there are no data to confirm COVID-19 vaccines prevent transmission; 2 if Plaintiffs’ 
allegations are true, then colleges and universities cannot mandate these vaccines and 
make distinctions between vaccinated and unvaccinated students. 
 
In sum, the import of Plaintiffs’ allegations are that no one knows if COVID-
19 vaccines actually prevent infection or transmission, if they pose any long-term side 
effects or risks, if they are effective against mutating strains of the virus, or if they are 
responsible for more than 1 million adverse events, killing upwards of 20,000 people 
and injuring more than 100,000.  In the absence of such knowledge, mandating these 
vaccines at this juncture, without such knowledge, is neither narrowly tailored nor 
reasonably related and Rutgers’ Policy cannot stand if Plaintiff can present evidence of 
these allegations.  The same cannot be said about other vaccines; only COVID-19 
vaccines are under EUA, with clinical studies still ongoing.  Their use remains 
 
2 The FAC cites FDA Briefing Documents that set forth all of the unknowns about 
these EUA COVID-10 vaccines.  FAC at 1.  For example, FDA’s Briefing Document 
on the Pfizer BioNTech COVID-19 vaccine sets out the unknown benefits and data 
gaps associated with this vaccine: “Duration of protection” (unknown past two 
months); “Effectiveness in certain populations at high risk of severe COVID-19” 
(unknown for immunocompromised); “Effectiveness in individuals previously 
infected with SARS-CoV-2” (“data are insufficient”); “Future vaccine effectiveness as 
influenced by characteristics of the pandemic, changes in the virus, and/or potential 
effects 
of 
co-infections” 
(“uncertainties”); 
“Vaccine 
effectiveness 
against 
asymptomatic infection” (“data are limited to assess the effect”); “Vaccine 
effectiveness against long-term effects of COVID-19 disease” (“not possible to 
assess”); “Vaccine effectiveness against mortality” (“Benefits in preventing death 
should be evaluated in large observational studies following authorization”); “Vaccine 
effectiveness against transmission of SARS-CoV-2.” (“Data are limited to assess the 
effect.”).  Counsel Decl. Ex. B at 46-48. 
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“experimental” and the decision to take such vaccines must remain with the individual 
while these vaccines are under investigation. 
 
Not surprisingly, to date, neither the State Legislature, the Governor under his 
emergency authority, the Department of Health, or the Commissioner of Health 
under his emergency authority have mandated COVID-19 EUA vaccines for 
attendance at public or private institutions of higher education.  FAC ¶¶ 113 and 114. 
 
It is alleged Rutgers did not consider or attempt to use less intrusive measures 
alternative to its Policy, such as temperature testing, self-administered and 
documented wellness checks, staggered scheduling, social distancing, prophylactic 
recommendations to the student body or other measures in lieu of its COVID-19 
vaccine mandate.  FAC ¶ 225.  In view of Plaintiffs’ allegations, Rutgers’ requirement 
that students with fully remote schedules must also vaccinate is particularly overbroad 
since they would be on campus less often than vaccinated students to spread the 
disease. 
 
Plaintiffs have alleged that breakthrough infections of the Delta variant 
demonstrate the ineffectiveness or waning efficacy of COVID-19 vaccines.  FAC ¶¶ 
140, 143.  The emergence of the Omicron variant confirms that fact in spades.  Even 
though Rutgers has boasted that the vast majority of its students and staff are 
vaccinated, it has decided to start the Spring semester this year remotely.  See 
https://coronavirus.rutgers.edu/significant-changes-related-to-covid-19/ This decision was made 
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because COVID-19 vaccines are not working, and if they do not work, they cannot be 
mandated. 
 
Furthermore, Rutgers’ argument that students do not have a right to attend 
Rutgers is of no moment here.  It is well-settled, that “the government may not deny a 
benefit to a person because he exercises a constitutional right.”  Koontz v. St. Johns River 
Water Mngmt. Dist., 570 U.S. 595, 604 (2013): 
 In Perry v. Sinderman, 408 U.S. 593 (1972), for example, we held that a 
public college would violate a professor’s freedom of speech if it 
declined to renew his contract because he was an outspoken critic of the 
college’s administration. And in Memorial Hospital v. Maricopa County, 415 
U.S. 250 (1974), we concluded that a county impermissibly burdened the 
right to travel by extending healthcare benefits only to those indigent 
sick who had been residents of the county for at least one year.  Those 
cases reflect an overarching principle, known as the unconstitutional 
conditions doctrine, that vindicates the Constitution’s enumerated rights 
by preventing the government from coercing people into giving them 
up. 
See also e.g. Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983); Rumsfeld v. 
Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006); Rutan v. Republican 
Party of Ill., 497 U.S. 62 (1990).  “[R]egardless of whether the government ultimately 
succeeds in pressuring someone into forfeiting a constitutional right, the 
unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated 
rights by coercively withholding benefits from those who exercise them.”  Koontz, 570 
U.S. at 606.  If Plaintiffs’ allegations are true then Rutgers’ Policy pressures students’ 
to forfeit the right to informed consent and the right to refuse unwanted medical 
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treatment by threatening to withhold the benefit of attending a public university or 
continuing their studies. 
C. Plaintiffs Have Plausibly Pled Violations of Equal Protection. 
Contrary to Defendants’ arguments, Brf. at 17-18, Plaintiffs allege more 
violations of Equal Protection.  They allege that Rutgers’ Policy unlawfully 
discriminates against them for invoking their Due Process rights.  FAC 315.  They 
allege also that naturally immune students are similarly situated to vaccinated students 
and should be treated similarly. FAC ¶ 314.  Defendants do not challenge these 
claims.  They also allege that Rutgers’ initial decision to mandate students but not staff 
and employees intentionally treated them differently from others similarly situated and 
that there is no rational basis for the difference in treatment, or it does not satisfy the 
requirements of strict scrutiny.  FAC ¶ 313.  They allege that Rutgers’ decision to 
mandate that only exempt students test weekly, wear masks and be banned from 
university housing because they are unvaccinated is another example of the university 
treating them differently from others similarly situated.  If the vaccines do not prevent 
transmission, as Plaintiffs allege, then vaccinated and unvaccinated students are 
similarly situated because they can spread the virus equally – and Rutgers’ intentional 
policy of treating them differently would have no rational basis for the difference in 
treatment (or would not satisfy the requirements of strict scrutiny). 
The Equal Protection claims that Defendants attack are recognized as “class of 
one” equal protection claims, governed by the Supreme Court’s holding in Village of 
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Willowbrook v. Olech, 528 U.S. 562 (2000).  The Third Circuit acknowledges such “class 
of one” equal protection claims and held that “to state a clam under that theory, a 
plaintiff must allege that (1) the defendant treated him differently from others 
similarly situated; (2) the defendant did so intentionally, and (3) there was no rational 
basis for the difference in treatment.”  Phillips v. County of Allegheny, 515 F.3d 224, 243 
(3d Cir. 2008); Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006); see also DeMuria 
v. Hawkes, 328 F.3d 704 (2d Cir. 2003).  Accepting Plaintiffs’ allegations as true, these 
“class of one” equal protection claims have been properly pled because Rutgers’ 
Policy did not impose a vaccine mandate on faculty or staff.  Plaintiffs allege that they 
are similarly situated to faculty and staff because they are just as capable of spreading 
COVID-19.  As stated, since Plaintiffs also allege that because COVID-19 vaccines 
do not prevent transmission, vaccinated students and unvaccinated students are 
similarly situated regarding their ability to spread COVID-19 and requiring only the 
unvaccinated students the burden of testing, masking, or being excluded from the 
dormitories is unreasonable. 
D. Plaintiffs’ 42 U.S.C. § 1983 and NJCRA Claims Survive. 
 
Since Plaintiffs have pled deprivations of underlying constitutional rights by 
Defendants, acting under color of state law (which Defendants do not dispute), their 
claims for money damages under 42 U.S.C. § 1983 and NJCRA survive at this stage.   
E. Plaintiffs Plausibly Pled Rutgers Violated State and Federal Law. 
1. Violation of federal law (preemption) 
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Until the FDA approves an Investigational New Drug Application and grants a 
license, it is considered experimental.3  The principle that it is illegal to coerce an 
individual to accept an experimental medical product is incorporated into the United 
States Code, the Code of Federal Regulations and guidance from health agencies.  See 
e.g. 21 U.S.C. § 360bbb-0a (investigational drugs for use by patients with a life-
threatening disease or conditions require written informed consent); 42 U.S.C. § 9501 
(requiring same for mental health patients); 38 U.S.C. § 7331 (same for veterans); 42 
U.S.C. § 300ff-61 (“in testing an individual for HIV/AIDS, the applicant will test an 
individual only after the individual confirms that the decision of the individual with 
respect with respect to undergoing such testing is voluntarily made.”); 21 C.F.R. § 
50.20 (establishing conditions for obtaining informed consent for unlicensed medical 
product in research including that consent should be free from “coercion or undue 
influence”); 45 C.F.R. § 46.116 (for unlicensed products in research “basic elements of 
informed consent” include a “statement that participation is voluntary” and “refusal 
to participate will involve no penalty or loss of benefits,” and investigators must 
“minimize the possibility of coercion or undue influence”); FDA’s Information Sheet: 
Informed Consent (“Coercion occurs when an overt threat of is intentionally presented 
by one person to another in order to obtain compliance.”)4.  See also Abdullahi v. Pfizer, 
 
3 See https://www.fda.gov/media/138490/download (“an investigational drug can also be 
called an experimental drug”);  
4 See https://www.fda.gov/regulatory-information/search-fda-guidance-documents/informed-
consent#coercion (last visited January 11, 2022). 
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Inc. 562 F.3d 163, 184 (2d Cir. 2009) (“The Nuremberg Code, Article 7 of the ICCPR, 
the Declaration of Helsinki, the Convention on Human Rights and Biomedicine, the 
Universal Declaration on Bioethics and Human Rights, the 2001 Clinical Trial 
Directive, and the domestic laws of at least eighty-four States all uniformly and 
unmistakably prohibit medical experiments on human beings without their consent, 
thereby providing concrete content for the norm.”).  That near universal principle 
applies to the EUAs for COVID-19 vaccines which were issued pursuant to 21 U.S.C. 
§ 360bbb-3, and which, as a condition of emergency use authorization, requires the 
Secretary to establish “appropriate conditions designed to ensure that individuals to 
whom the product is administered are informed” of, inter alia, “the option to accept or 
refuse administration of the product, of the consequences, if any, of refusing 
administration of the product, and of the alternatives to the product that are available 
and of their benefits and risks.” 21 U.S.C. § 360bbb-3(e)(1)(A).  Read together these 
federal statutes and regulations require individuals to exercise informed consent to a 
COVID-19 vaccine under EUA, or EUA testing and practices (e.g. masking).  It is 
impossible for students who object to COVID-19 vaccination to simultaneously 
exercise the informed consent required by 21 U.S.C. § 360bbb-3(e)(1)(A) and comply 
with Rutgers’ Policy.  In other words, students who are coerced by Rutgers Policy, 
cannot give the informed consent that EUA requires. 
The Supremacy Clause establishes that federal law is supreme.  U.S. Const., 
Art. VI, cl. 2.  Pre-emption analysis requires a comparison of federal and state law.  
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PLIVA, Inc. v. Mensing, 564 U.S. 604, 611 (2011).  “State law is naturally preempted to 
the extent of any conflict with a federal statute.”  Crosby v. National Foreign Trade 
Council, 530 U.S. 363 (2000).  The Supreme Court has held that “state and federal law 
conflict where it is ‘impossible for a private party to comply with both state and 
federal requirements’.”  PLIVA, Inc., 564 U.S. at 618 (quoting Freightliner, Corp. v. 
Myrick, 514 U.S. 280, 287 (1995) (finding impossibility where it was not lawful under 
federal law for drug manufacturers to do what state law required of them).  Similarly, 
in this case, federal law requires every person to give uncoerced informed consent 
before receipt of an EUA COVID-19 vaccine.  21 U.S.C. § 360bbb-3(e)(1)(A).  
Plaintiffs allege Rutgers’ Policy coerces students who object to COVID-19 
vaccination to give up informed consent in order to comply with the Policy.  FAC ¶¶ 
261-263.  If a student surrenders informed consent to comply with Rutgers’ Policy he 
violates federal law; if the same student exercises informed consent under 21 U.S.C. § 
360bbb-3(e)(1)(A) and refuses COVID-19 vaccination he violates Rutgers’ Policy.  See 
PLIVA, Inc., 564 U.S. at 620 (“[t]he question for ‘impossibility’ is whether the private 
party could independently do under federal law what state law requires of it”).  If 
Plaintiffs can present evidence that they were coerced by Rutgers’ Policy, as alleged, 
FAC ¶ 133, then they will be in a position to prove the doctrine of impossibility 
preemption. 
Defendants argue that Rutgers has “not ‘mandated’ any particular action, but 
has only made adherence to its mandate a condition of enrollment.”  Brief at 26.  
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Plaintiffs have countered that this action violates the unconstitutional conditions 
doctrine.  See discussion at 17-18, supra.  Additionally, conditioning a benefit, or 
threatening the loss of a benefit to gain consent to administration of an unlicensed 
product is precisely the type of “coercion” that is contemplated and forbidden by the 
federal statutory scheme governing such products.  Everything about Rutgers’ Policy 
conflicts with the right to informed consent reflected in Section 564 because it 
renders it impossible for students who object to EUA vaccines, tests and masks to 
exercise that right.  The cases cited by Rutgers, Bridges v. Houston Methodist Hosp., No. 
H-21-1774, 2021 WL 2399994 , at *2 (S.D. Tex June 12, 2021) and Valdez v. Grisham, 
No. 21-cv-783, 2021 WL 4145746, at *4 (D.N.M. Sept. 13, 2021), did not consider 
this conflict from the point of view of the student.  But see Norris v. Stanley, 2021 WL 
3891615 (W.D. Mich 2021) (questioning this position in view of Pfizer vaccine 
approval).  Finally, Plaintiffs allege Pfizer’s Comirnaty vaccine is unavailable, FAC ¶ 
125, if true its licensure does not cure this preemptive conflict. 
2. Violation of state authority (ultra vires) 
Rutgers argues that New Jersey law explicitly authorizes Rutgers’ Policy.  
However, neither N.J.S.A. § 18A:61D-1 or N.J.A.C. § 8:57-6.4(c) authorize Rutgers to 
mandate novel vaccines upon its students.  
First, N.J.S.A. 18A:61D-1 has no language delegating police powers to Rutgers 
to mandate any vaccines.  In fact, it contains no language empowering Rutgers to do 
anything.  By its plain text, this statute instead requires Rutgers to collect from 
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students “as a condition of admission or continued enrollment” their valid 
immunization record, “which documents the administration of all required 
immunizations against vaccine-preventable disease, or evidence of immunity from 
these diseases, in accordance with regulations promulgated by the Department of 
Health.”  Additionally, this statute only allows Rutgers to collect such records from a 
student who is “30 years of age or less” – reading into this statute, the absurd meaning 
that Rutgers proposes, would impede Rutgers from mandating vaccines on students 
who are 30 years of age or less.  This statute has nothing to do with mandating 
vaccines.  Moreover, taking Plaintiffs’ allegations as true, this statute is wholly 
inapplicable since Plaintiffs are alleging that COVID-19 vaccines do not prevent 
infection or transmission, and if true, COVID-19 vaccines cannot be categorized as 
“immunizations against vaccine-preventable diseases”.  FAC at 1 and ¶¶ 140-43, 297.  
Moreover, the Department of Health has not promulgated any regulations requiring 
COVID-19 vaccines for attendance at public institutions of higher education.  
Rutgers’ proposed interpretation of this statute is at odds with New Jersey’s entire 
legal framework for compulsory vaccination.   
New Jersey’s Department of Health has the power to mandate vaccines: acting 
through New Jersey’s Public Health Council, the Department of Health can mandate 
vaccines but only if it publishes the proposed regulation, holds a public hearing and 
gives the public the opportunity to comment.  See N.J.S.A. 26:1A-7 (power to 
establish State Sanitary Code, including immunization against disease); see also N.J.S.A. 
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26:4-2 (general powers). The Commissioner of Health can mandate vaccines 
unilaterally, but only during a public health emergency.  See N.J.S.A. 26:13-14.  Most 
recently, the Governor can mandate vaccines unilaterally as a result of recent powers 
temporarily vested in him by the state legislature, but only until January 11, 2022.  See 
N.J.S.A. 26:13-36.  Finally, in the context of higher education, in a section entitled, 
“Modifications “[i]n the event of an outbreak or threatened outbreak” only the 
Commissioner of Health or local health officers (which Rutgers is not) “may modify 
the immunization requirements as set forth in this subchapter to meet the 
emergency.”  N.J.A.C. 8:57-6.21.  “These modifications may include obtaining 
immunization documentation or requiring specific immunizations for each student not covered by 
this subchapter.”  N.J.A.C. 8:57-6.21(a)(1).  Thus, concerning higher education 
immunization requirements, only the Commissioner or local health officers are 
authorized to act in the event of an outbreak to mandate “specific immunizations” 
that are not already set forth in the regulations “to meet the emergency.”  There is no 
express provision that Rutgers, or any other public or private institution of higher 
education can take action “in the event of an outbreak” to mandate new vaccines for 
college attendance and there is good reason for that: in the event of an outbreak it 
makes no sense for public or private institutions to have discretion about what 
vaccines to mandate or when; moreover, N.J.A.C. 8:57-6.21 gives the Commissioner – 
and only the Commissioner – the power to temporarily suspend an immunization 
requirement for higher education in the event of a national or state “vaccine 
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shortage.”  The Commissioner’s ability to coordinate a uniform response to an 
outbreak would be meaningless if colleges and universities have independent authority 
to mandate new vaccines in the event of an outbreak.  To date, none of the 
government officials in New Jersey who are expressly empowered to mandate 
compulsory vaccination in response to an outbreak of COVID-19 have mandated any 
such vaccines for college attendance.5 
 
As a last resort, Rutgers points to N.J.A.C. 8:57-6.4(c) for the proposition that 
Rutgers is authorized to require other ACIP-recommended vaccinations.  Brf. at 26.  
However, N.J.A.C. 8:57-6.4(c) (formerly N.J.A.C. 8:57-6.2(c), and before 1995, 
N.J.A.C. 9:2-14.2(b)) does not authorize Rutgers to do anything “during an outbreak” 
and at most, it only permits colleges and universities to establish “additional 
requirements for student immunizations and documentation recommended by ACIP” 
not additional specific immunizations for students, and certainly not EUA vaccines.  
Read in conjunction with New Jersey’s legal framework, this regulation only means 
that colleges and universities can impose additional requirements and documentation 
on immunizations that are required by existing statutes or regulations, if ACIP 
recommends it; this could include for example, changes in the types of the 
documentation that should be accepted as proof of vaccination or a particular 
hepatitis B vaccine.  See N.J.S.A. 18A:61D-8. 
 
5 Plaintiffs do not concede that these government officials can mandate EUA Covid-
19 vaccines, especially in light of Plaintiffs’ allegations about such vaccines and the 
requirements of Jacobson, Cruzan and its progeny. 
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This regulation appears to have been proposed for the first time in 1989; and 
the administrative history of this regulation6 does not support Rutgers’ interpretation 
that more than 30 years ago the state of New Jersey gave Rutgers carte blanche authority 
to unilaterally impose any new vaccine on its student body it deemed appropriate if 
ACIP recommended it.  See 21 N.J. Reg. 3605-3607 (1989) (original version of rule 
proposed for N.J.A.C. 9:2-14.2(c)); 22 N.J. Reg. 1137-1140 (1990) (original version of 
rule adopted and codified at N.J.A.C. 9:2-14.1(b)). See Counsel Decl. Ex. B and C, 
filed herewith. Plaintiffs have not found anywhere in the administrative history of this 
regulation going back to 1989 any discussion or suggestion that Rutgers (and every 
other college and university) has discretion to unilaterally increase the types of 
vaccines that students must take to attend.  Absent such an express delegation of 
police power, like in Jacobson, Rutgers’ reliance on this regulation should not be used 
to condone chilling the free exercise of the Due Process rights of Plaintiffs or the 
70,000 students at Rutgers. 
Moreover, when this regulation was originally proposed Rutgers lodged a 
public comment to express its concerns that “standards within the rules and the 
underlying legislation are inadequate as approximately 10% of those individuals 
 
6 See 21 N.J. Reg. 3605 (1989) (original rule proposal for N.J.A.C. 9:2-14(c)); 22 N.J. 
Reg. 1137-1140 (original rule codified at N.J.A.C. 9:2-14.1(b)); 27 N.J. Reg. 3631(a) 
(1995) (recodified at N.J.S.A. 8:57-6.2(c)); 27 N.J. Reg. 4701(a) (1995); 33 N.J. Reg. 
2752(a) (2001); 34 N.J. Reg. 3023(a) (2002); 36 N.J. Reg. 3335(a) (2004); 37 N.J. Reg. 
3037(b) (2005); 40 N.J. Reg. 1962(a) (2008) (proposal to recodify at N.J.S.A. 8:57-
6.4(c)); 41 N.J. Reg. 1419(a) (2009) (recodified at N.J.A.C. 8:57-6.4(c)). 
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vaccinated prior to 1980 are not adequately protected due to vaccine failure.”  22 N.J. 
Reg. 1138 (1990) (Counsel Decl., Ex. C).  In response to Rutgers’ comment, the 
Board of Higher Education at the time consulted with the Department of Health 
which did not “recommend a change in the rules with regard to vaccine requirements 
at this time.”  Id.  Back then, the only required immunizations were for measles, 
mumps and rubella; immunization between 1968 and 1980 sufficed to meet the 
requirement for attendance.  Id. Rutgers’ concern that the rules being proposed did 
not require proof of vaccination post-1980 would be unfounded if Rutgers could 
simply mandate such immunizations under these new regulations, especially when the 
original formulation of the regulation did not require a supporting ACIP 
recommendation to do so.  See Counsel Decl. Ex. D at 21 N.J.R. 3606 ( § 9:2-14.2). 
Rutgers’ comment to the 1989 rule proposal would be completely unnecessary 
if the regulation it relies upon, N.J.A.C. 8:57-6.4(c), has always meant that a university 
had the authority to require more vaccinations unilaterally on its student body.  
Despite the administrative history of this regulation belying that interpretation, that is 
exactly what Rutgers claims this regulation means today: that it is a unilateral authority 
to impose whatever new vaccine Rutgers deems appropriate upon the student body 
with no restrictions (except in the current version of the rule, if recommended by the 
Advisory Committee on Immunization Practices (“ACIP”) of the Centers for Disease 
Control and Prevention). 
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This regulation clearly is not a delegation of police power to mandate vaccines, 
and Rutgers’ reliance on this rule is mere sophistry.  Moreover, this regulation is 
certainly not an authorization to mandate vaccines that are not licensed and fully 
approved by the FDA.  Additionally, if colleges and universities could simply add new 
vaccines to those required by the state Department of Health to attend college, then 
there would be no need for the State Legislature to devote considerable time and 
resources to passing statutes requiring additional vaccines for college attendance since 
the adoption of this regulation in 1990.  See e.g. N.J.S.A. 18A:61D-8 (hepatitis B 
vaccine); N.J.S.A. 18A:62-15.1 (meningococcal vaccine). 
Similarly, Rutgers’ reliance upon N.J.A.C. § 8:57-6.14 (d) and N.J.A.C. § 8:57-
6.15, for the proposition that Rutgers can exclude unvaccinated students from 
university housing is misplaced.  First, the express language of these regulations does 
not give Rutgers the power to ban students from dormitories or evict them when an 
outbreak arises – they only allow exclusion from classes.  There is good reason for 
that limited authority; otherwise, during an outbreak, students living in dormitories 
could be effectively evicted from their principal residence, and rendered essentially 
homeless, which would be counterintuitive if you are trying to promote public health. 
Second, Rutgers’ authority to exclude only arises during “a vaccine-preventable 
disease outbreak.”  Plaintiffs’ allegations, which must be accepted as true at this stage, 
allege that COVID-19 is not a vaccine-preventable disease, because there is no 
vaccine that prevents COVID-19.  FAC ¶¶ 140-143.  If COVID-19 vaccines do not 
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prevent infection or transmission, then COVID-19 cannot be a “vaccine-preventable 
disease” and Rutgers cannot exclude students under these rules.   
Additionally, Jacobson stands for the proposition that a state legislature makes 
the determination that vaccination is necessary and can delegate that authority to a 
board of health.  197 U.S. at 27 (“appropriate for the legislature to refer that 
question… to a Board of Health”).  If Jacobson stands for anything it stands for the 
proposition that the power to mandate vaccines is a police power to be exercised or 
delegated by the State Legislature.  In Jacobson, Massachusetts delegated that authority 
to local boards of health.  New Jersey has delegated that authority to the Department 
of Health and under particular more limited circumstances to the Governor, the 
Commissioner of Health or local health officers.  New Jersey has not delegated such 
authority to private and public institutions of higher education and therefore Rutgers 
lacks the prerequisite authority to mandate vaccines that Jacobson requires.  And none 
of the government actors who are truly empowered to mandate compulsory 
vaccination in New Jersey have mandated COVID-19 vaccines for college attendance. 
 
Finally, in the alternative, if this Court were to find that Rutgers has authority 
under N.J.A.C. 8:57-6.4(c), it is bound to exercise its authority in accordance with 
ACIP recommendations concerning COVID-19 vaccines.  The ACIP 
recommendations (upon which Rutgers relies) are tethered to compliance with 21 
U.S.C. § 360bbb-3’s requirement that recipients of these vaccines have a right to 
accept or refuse administration; as a result, ACIP’s recommendations expressly 
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require a recipient to receive Fact Sheets stating they have the option to refuse.   See 
e.g. https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7044e2-H.pdf (“Before vaccination 
providers should provide the EUA Fact Sheet for the vaccine being administered and 
counsel vaccine recipients about expected systemic and local reactogenicity.”).  
Rutgers cannot claim it has authority to adopt “additional requirements for student 
immunizations” that are “recommended by the ACIP” and then impose a vaccine 
mandate that nullifies the informed consent in the Fact Sheets ACIP recommends for 
administration of these vaccines.  Assuming arguendo, that N.J.A.C. 8:57-6.4(c) gives 
Rutgers authority, whatever immunization requirement it adopts must comply fully 
with the ACIP recommendation.  FAC ¶ 230. 
F. Plaintiffs Have Successfully Pled Breach of Contract. 
Defendants move to dismiss this claim by arguing a different set of facts, not 
accepting Plaintiffs’ version of the facts as true.  They argue that the “contract” at 
issue was formulated in the Fall of 2021, after the mandate was announced.  Brf. at 
29.  They also argued that Plaintiffs have failed to allege a contract “with the terms 
they posit.”  Brf. at 29.  
New Jersey courts have equitably read the existence of a contract from the 
enrollment terms and conditions between a university and its students to assess the 
legal rights and conduct between them.  See e.g. Beukas v. Board of Trustees of Fairleigh 
Dickinson Univ., 255 N.J. Super 420 (1992) (assuming that the various university 
bulletins constituted an enforceable contract); Gourdine v. Felician College, 2006 WL 
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33 
23462578 (N.J. App. Div. 2006) (unreported) at *2 (“to the extent that plaintiffs seek 
to enforce a contractual right… that contract includes the college catalog’s reservation 
of rights to alter or to eliminate the program to which they were enrolled”); but see 
Dougherty v. Drew University, 534 F. Supp. 3d. 363, 374 (D.N.J. 2021) (following Beukas 
but reviewing “the bona fides of the [University’s] decisionmaking and the fairness of 
its implementation” for COVID-19 remote learning rather than pure contract theory).  
Plaintiffs’ breach of contract claim rests on the terms and conditions of enrollment at 
Rutgers university and the alleged absence of any condition or reservation that 
Rutgers could command or alter public health measures as a condition of enrollment 
(e.g. vaccine requirements, health testing, or masking).  FAC ¶ 338.   
G. Plaintiffs Have Properly Pled Estoppel. 
“Promissory estoppel is made up of four elements: (1) a clear and definite 
promise; (2) made with the expectation that the promise will rely on it; (3) reasonable 
reliance; and (4) definite and substantial detriment.”  Goldfarb v. Solimine, 245 N.J. 326, 
339-340 (2021); see also Housing Authority of City of Atlantic City v. State, 188 N.J. Super 
145, 149 (1983) (estoppel arises from “a representation, knowledge that a second 
person is acting on the basis of the representation, and substantial detrimental reliance 
by the second person… the first person is prohibited from repudiating the truth of his 
representation.”)  Id.  (citing Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 
334, 339 (1979).  Plaintiffs have pled a plausible claim on these elements. 
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The FAC alleges that on January 22, 2021, Rutgers told students that COVID-
19 vaccines would not be required for students to return to campus for in-person 
instruction.  FAC ¶ 191.  Rutgers made this official announcement in a video 
produced by Rutgers to assure students that Rutgers was not mandating the vaccine.  
FAC ¶ 191.  Since Rutgers produced the video and distributed it to students and staff, 
Rutgers made these representations with knowledge they would rely and act on it.  
And, as alleged, Plaintiffs relied on these representations “to accept offers of 
admission to its colleges, avoid seeking transfers to other colleges and universities, or 
entertain other alternatives to in-person attendance.” FAC ¶191.  Plaintiffs allege that 
when Rutgers reversed course, they were no longer in a position to arrange to attend a 
different equivalent college or university.  FAC ¶ 334.  Similarly, Ms. Pinto 
additionally relied on Rutgers’ representation in the Policy that fully-remote students 
would be exempt.  FAC ¶ 335.  Plaintiffs have suffered detriment in the form of 
suspension of their studies.  FAC ¶¶ 16, 19, 336. 
Rather than accepting Plaintiffs’ factual allegations as true, Defendants 
challenge this claim by presenting alternative facts.  For example, they argue Rutgers’ 
representative intended to make no promises, or that Plaintiffs had sufficient 
opportunity to attend a different college when Rutgers announced the mandate in 
March.  Brf. at 31.  These arguments might perhaps be better for a motion for 
summary judgment.  Concerning Ms. Pinto’s estoppel claim, Defendants argue that 
the Court denied a preliminary injunction on the claim, but that decision was rendered 
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35 
under a different standard.  Even if Rutgers defines what constitutes a fully-remote 
student, the text of the Policy was communicated to students with knowledge that it 
would be acted upon by them, Ms. Pinto relied on that language and was allowed to 
register for her classes remotely without presenting evidence of COVID-19 
vaccination.  Whether the Policy was clear or ambiguous, reasonably relied upon, 
timely clarified, raises issues of fact that cannot defeat Plaintiffs’ reliance claims at this 
stage.  Plaintiffs have pled estoppel claims and should be permitted to pursue an order 
estopping Rutgers from repudiating its representations or damages. 
CONCLUSION 
 
For the reasons stated, Plaintiffs respectfully request that this Court deny 
Defendants’ motion to dismiss, or, in the alternative, grant Plaintiffs an opportunity to 
amend. 
Respectfully submitted. 
January 11, 2022 
 
 
 
 
GOMEZ LLC 
 
 
 
 
 
 
 
ATTORNEY AT LAW 
 
 
 
 
 
 
 
By:  
s/ Julio C. Gomez 
 
 
 
 
 
 
 
 
 
 
   Julio C. Gomez, Esq. 
1451 Cooper Road 
Scotch Plains, NJ 07076 
Tel 908.789.1080 
Fax 908.789.1081 
jgomez@gomezllc.com 
Attorney for Plaintiffs 
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